`================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ---------------------------------
`
`STEPHEN DOMINICK MCFADDEN,
`
`Petitioner,
`
`v.
`
`UNITED STATES OF AMERICA,
`
`Respondent.
`
`--------------------------------- ---------------------------------
`
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Fourth Circuit
`
`--------------------------------- ---------------------------------
`
`BRIEF FOR AMICUS CURIAE NATIONAL
`ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
`IN SUPPORT OF PETITIONER
`
`--------------------------------- ---------------------------------
`
`TERRANCE G. REED
`LANKFORD & REED, PLLC
`BARBARA E. BERGMAN
`Co-Chair, NACDL Amicus
` Committee
`JAMES E. ROGERS
` COLLEGE OF LAW
`UNIVERSITY OF ARIZONA
`1201 E. Speedway Blvd.
`Tucson, AZ 85721
`(520) 621-3984
`bbergman@email.arizona.edu
`
`HOWARD SREBNICK
` Counsel of Record
`JOSHUA SHORE
`BLACK, SREBNICK, KORNSPAN
` & STUMPF, P.A.
`201 S. Biscayne Blvd.
`Miami, FL 33131
`(305) 371-6421
`HSrebnick@RoyBlack.com
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF CONTENTS ......................................
`i
`TABLE OF AUTHORITIES .................................
`ii
`INTEREST OF AMICUS CURIAE ......................
`1
`SUMMARY OF THE ARGUMENT .....................
`2
`ARGUMENT ........................................................
`4
` The Court Should Grant Certiorari to Confirm
`that Instructional Error as to a Contested
`Element is Never Harmless .............................
` A. The Constitution Prohibits Judges from
`Directing a Verdict on a Contested
`Element of a Criminal Offense ..................
` B. The Circuits are Split Over Whether
`Overwhelming Evidence Can Render
`Harmless the Omission of a Contested
`Element, and the Issue is a Recurring One .... 13
` C. This Case Presents an Ideal Vehicle to
`Resolve the Lower Court Confusion Over
`the Harmless Error Test Applicable to
`Instructional Errors .................................. 17
`CONCLUSION ..................................................... 24
`
`4
`
`4
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES:
`Bollenbach v. United States, 326 U.S. 607 (1946) ......... 7
`Brecht v. Abrahamson, 507 U.S. 619 (1993) ................. 8
`Burks v. United States, 437 U.S. 1 (1978) .................. 12
`Carpenters v. United States, 330 U.S. 395 (1947) ........ 5
`Chapman v. California, 386 U.S. 18 (1967)...... 8, 10, 15
`Coleman v. Johnson, 132 S. Ct. 2060 (2012) .............. 21
`Duncan v. Louisiana, 391 U.S. 145 (1968) ............... 5, 8
`Elonis v. United States, 135 S. Ct. 2001 (2015) ......... 19
`Ex Parte Milligan, 71 U.S. 1 (1866) .............................. 7
`Glebe v. Frost, 135 S. Ct. 429 (2014) ........................... 22
`Herring v. New York, 422 U.S. 853 (1975) ............ 22, 23
`Kotteakos v. United States, 328 U.S. 750 (1946) .......... 8
`Lighting Fixture & Elec. Supply Co. v. Cont’l Ins.
`Co., 420 F.2d 1211 (5th Cir. 1969) ........................... 20
`Luce v. United States, 469 U.S. 38 (1984) ................... 22
`McFadden v. United States, 135 S. Ct. 2298
`(2015) ....................................................................... 18
`Monsanto v. United States, 348 F.3d 345 (2d Cir.
`2003) .................................................................... 2, 16
`Neder v. United States, 527 U.S. 1 (1999) .......... passim
`Owens v. United States, 483 F.3d 48 (1st Cir.
`2007) ........................................................................ 22
`Rose v. Clark, 478 U.S. 570 (1986) ............................ 4, 5
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`Sullivan v. Louisiana, 508 U.S. 275 (1993) .................. 8
`Tellabs, Inc. v. Makor Issues & Rights, Inc., 551
`U.S. 308 (2007) ........................................................ 18
`United Bhd. of Carpenters & Joiners of Am. v.
`United States, 330 U.S. 395 (1947) ........................... 7
`United States v. Alexander, 817 F.3d 1205 (10th
`Cir. 2016) ................................................................. 17
`United States v. Alvarado, 816 F.3d 242 (4th Cir.
`2016) ........................................................................ 17
`United States v. Bailey, 270 F.3d 83 (1st Cir.
`2001) ........................................................................ 13
`United States v. Brown, 202 F.3d 691 (4th Cir.
`2000) .............................................................. 2, 16, 21
`United States v. Choudhry, 649 F. App’x 60, 2016
`WL 2942532 (2d Cir. 2016) ..................................... 16
`United States v. DiLeo, 625 F. App’x 464, 2015
`WL 5099473 (11th Cir. 2015) .................................... 2
`United States v. Elonis, 841 F.3d 589 (3d Cir.
`2016) ........................................................................ 16
`United States v. Ford, 821 F.3d 63 (1st Cir. 2016) ....... 16
`United States v. Gaudin, 515 U.S. 506 (1995) .............. 7
`United States v. Haire, 371 F.3d 833 (D.C. Cir.
`2004) .......................................................................... 2
`United States v. Houston, 792 F.3d 663 (6th Cir.
`2015) ........................................................................ 17
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`United States v. Janis, 810 F.3d 595 (8th Cir.
`2016) ........................................................................ 17
`United States v. Martin Linen Supply Co., 430
`U.S. 564 (1977) ...................................................... 5, 8
`United States v. Maslenjak, 821 F.3d 675 (6th
`Cir. 2016) ................................................................. 16
`United States v. Miguel, 338 F.3d 995 (9th Cir.
`2003) ........................................................................ 22
`United States v. Nosal, ___ F.3d ___, 2016 WL
`7190670 (9th Cir. Dec. 8, 2016) ............................... 16
`United States v. Perez, 280 F.3d 318 (3d Cir.
`2002) .......................................................................... 2
`United States v. Pizarro, 772 F.3d 284 (1st Cir.
`2014) .............................................................. 2, 13, 17
`United States v. Prigmore, 243 F.3d 1 (1st Cir.
`2001) ........................................................................ 13
`United States v. Reza-Ramos, 816 F.3d 1110 (9th
`Cir. 2016) ................................................................. 17
`United States v. Stanford, 823 F.3d 814 (5th Cir.
`2016), cert. denied on other grounds, No. 16-
`454, 2016 WL 5851763 (U.S. Nov. 7, 2016) ....... 16, 21
`United States v. Takhalov, 827 F.3d 1307 (11th
`Cir. 2016) ................................................................. 16
`United States v. United States Gypsum Co., 438
`U.S. 422 (1978) ........................................................ 19
`United States v. White, 810 F.3d 212 (4th Cir.
`2016) ........................................................................ 17
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`United States v. Wynn, 827 F.3d 778 (8th Cir.
`2016) ........................................................................ 16
`United States v. Zhen Zhou Wu, 711 F.3d 1 (1st
`Cir. 2013) ................................................................. 13
`
`
`CONSTITUTIONAL PROVISIONS:
`Constitution Article III, § 2, cl. 3 .................................. 6
`Sixth Amendment ................................................... 6, 23
`
`STATUTES:
`21 U.S.C. § 802(32)(A) ................................................. 18
`
`OTHER AUTHORITIES:
`John Adams, Argument and Report, in 2 Legal
`Papers of John Adams 172-210 (L. Kinvin
`Wroth & Hiller B. Zobel eds., 1965) .......................... 6
`Powell, Jury Trial of Crimes, 23 Wash. & Lee L.
`Rev. 1 (1966) .............................................................. 6
`
`
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE1
`The National Association of Criminal Defense
`
`Lawyers (NACDL) is a nonprofit voluntary profes-
`sional bar association that works on behalf of criminal
`defense attorneys to ensure justice and due process for
`those accused of crime or misconduct. NACDL was
`founded in 1958. It has a nationwide membership of
`many thousands of direct members and, with its affili-
`ates, represents more than 40,000 attorneys. NACDL’s
`members include private criminal defense attorneys,
`public defenders, military defense counsel, law profes-
`sors, and judges. NACDL is the only nationwide pro-
`fessional bar association for public defenders and
`private criminal defense lawyers. NACDL is dedicated
`to advancing the proper, efficient, and just administra-
`tion of justice. It frequently appears as amicus curiae
`before this Court and other federal and state courts,
`seeking to provide assistance in cases that present is-
`sues of broad importance to criminal defendants, crim-
`inal defense lawyers, and the criminal justice system
`as a whole.
`
`
`
`--------------------------------- ---------------------------------
`
`
`
`
`
`1 The parties have consented to the filing of this brief. No
`counsel for a party authored this brief in whole or in part, and no
`person other than amicus and its counsel has made any monetary
`contribution to the preparation or submission of this brief. The
`parties received 10 days’ notice of the intention to file the brief.
`
`
`
`
`
`2
`
`SUMMARY OF THE ARGUMENT
`In Neder v. United States, 527 U.S. 1, 9 (1999), the
`
`Court held that the failure to submit to the jury an es-
`sential element of an offense is subject to the harmless
`error test. Since then, a “significant inconsistency” has
`developed “in the way courts have reviewed for harm-
`lessness the failure to instruct on an element of a
`crime,” making this issue ripe for “the Supreme Court
`to clarify the line between an unconstitutional, di-
`rected guilty verdict and a harmless failure to instruct
`on an element.” United States v. Pizarro, 772 F.3d 284,
`303 (1st Cir. 2014) (Lipez, J., concurring).
`
`Indeed, more than a dozen federal judges have
`
`acknowledged the conflict among the courts of appeals
`over the harmless-error standard that applies when a
`trial judge fails to instruct a jury on an element of the
`offense and thus effectively directs a verdict in favor of
`the Government on that element. See id.; Monsanto v.
`United States, 348 F.3d 345, 350-51 (2d Cir. 2003) (Cal-
`abresi, joined by Sack and Garaufis, JJ.); United States
`v. Brown, 202 F.3d 691, 701 n.19 (4th Cir. 2000) (King,
`joined by Murnaghan and Michael, JJ.); United States
`v. Perez, 280 F.3d 318, 333 (3d Cir. 2002) (Ambro, joined
`by Scirica and Pollak, JJ.); United States v. Haire, 371
`F.3d 833, 839-40 (D.C. Cir. 2004) (Sentelle, joined by
`Henderson and Garland, JJ.); United States v. DiLeo,
`625 F. App’x 464, 2015 WL 5099473 at *18 (11th Cir.
`2015) (Martin, J., dissenting).
`
`There are formidable grounds to recognize that,
`
`whenever a defendant genuinely contests an essential
`
`
`
`
`
`3
`
`element, no further harmless error review is justified
`once the appellate court determines that the trial court
`erred in refusing to instruct the jury on that element.
`This is simply because, as Chief Justice Rehnquist and
`Justice Scalia agreed in their opposing opinions in
`Neder, the Constitution forbids judges from directing
`verdicts no matter how overwhelming the evidence.
`Compare Neder, 527 U.S. at 17 n.2 (majority opinion by
`Rehnquist, C.J.), with id. at 33 (Scalia, J., joined by
`Souter and Ginsburg, JJ., concurring in part, dissent-
`ing in part).
`
`In petitioner’s case, the missing element of mens
`
`rea was contested and the evidence at trial offered
`competing inferences – as acknowledged by the Fourth
`Circuit panel opinion on remand below. Yet, the appel-
`late panel affirmed six of nine convictions based on its
`post-hoc assessment of the weight of evidence from the
`record of the flawed trial, ignoring the prospect that,
`had the trial judge not directed the verdict on the dis-
`puted element, petitioner could have presented addi-
`tional evidence not relevant at the first trial (his own
`testimony, for example), to persuade a properly in-
`structed jury of his innocence.
`
`Thus, this case presents the issue not confronted
`
`in Neder – what, if any, harmless error review is justi-
`fied when an essential element is contested, and would
`be again upon remand before a properly instructed
`jury. Amicus submits that whenever a defendant gen-
`uinely contests an element, neither a trial judge nor an
`appellate panel can supplant the jury’s role in making
`
`
`
`
`
`4
`
`a finding on that element, even in the face of over-
`whelming evidence at the first trial.
`
`--------------------------------- ---------------------------------
`
`ARGUMENT
`The Court Should Grant Certiorari to Confirm
`that Instructional Error as to a Contested
`Element is Never Harmless
`A. The Constitution Prohibits Judges from
`Directing a Verdict on a Contested Element
`of a Criminal Offense
`For centuries, this Court has held that the Consti-
`
`tution forbids judges from directing verdicts in crimi-
`nal cases. Indeed, in Neder, the majority opinion
`written by Chief Justice Rehnquist responded to Jus-
`tice Scalia’s accusation in his concurrence and dissent
`that permitting harmless error judicial review would
`be permitting a directed verdict, by once again reaf-
`firming that directing a verdict is not constitutionally
`permissible. Neder, 527 U.S. at 17 n.2 (citing Rose v.
`Clark, 478 U.S. 570, 578 (1986) (Powell, J.)).
`
`In Rose, as expressly reaffirmed in Neder, Justice
`
`Powell explained:
`
`Similarly, harmless-error analysis would pre-
`sumably not apply if a court directed a verdict
`for the prosecution in a criminal trial by jury.
`We have stated that “a trial judge is prohib-
`ited from entering a judgment of conviction or
`directing the jury to come forward with such
`
`
`
`
`
`5
`
`a verdict . . . regardless of how overwhelm-
`ingly the evidence may point in that direc-
`tion.” United States v. Martin Linen Supply
`Co., 430 U.S. 564, 572-573 (1977) (citations
`omitted). Accord, Carpenters v. United States,
`330 U.S. 395, 408 (1947). This rule stems from
`the Sixth Amendment’s clear command to af-
`ford jury trials in serious criminal cases. See
`Duncan v. Louisiana, 391 U.S. 145 (1968).
`Where that right is altogether denied, the
`State cannot contend that the deprivation was
`harmless because the evidence established
`the defendant’s guilt; the error in such a case
`is that the wrong entity judged the defendant
`guilty.
`
`Rose, 478 U.S. at 578.
`
`If the Constitution prohibits a trial court from di-
`
`recting a verdict on an essential element of an offense,
`and it unquestionably does, then an appellate court
`one step removed from the trial can have no greater
`constitutional power. This is not to diminish the role of
`judges; it is a recognition that the Constitution has his-
`torically and exclusively assigned to jurors the task of
`determining guilt.
`
`In his concurring and dissenting opinion in Neder,
`
`Justice Scalia reviewed the extensive constitutional
`reasons for holding that harmless error cannot apply
`to a denial of a defendant’s right to have a jury deter-
`mine each and every element of a criminal offense.
`Neder, 527 U.S. at 30 (Scalia, J., joined by Ginsberg,
`Souter, JJ.). Calling the jury trial right the “spinal col-
`umn of American democracy,” Justice Scalia pointed
`
`
`
`
`
`6
`
`out that this is the only right that is placed in both the
`body of the Constitution (Article III, § 2, cl. 3) and also
`the Bill of Rights (Sixth Amendment). Id.
`
`If anything, Justice Scalia’s eloquent historical ac-
`
`count of the significance of the jury trial right under-
`stated the contribution that this right made to the
`founding of this country. Prior to the Declaration of In-
`dependence, Boston criminal defense attorney John
`Adams was called upon to defend Boston merchant
`John Hancock and his re-named schooner Liberty upon
`the charge of openly sailing untaxed Madeira wine into
`Boston Harbor.2 For obvious reasons, the Crown
`brought its charges in the British Admiralty courts, ra-
`ther than face an unsympathetic colonial jury.3 Invok-
`ing the Magna Carta, and its centuries-old guarantee
`of a jury trial for British citizens, attorney Adams de-
`cried the loss of this cherished right of Englishmen,
`and then turned his opening statement into a pam-
`phlet for circulation throughout the colonies. That is
`one reason why the Crown’s denial of the right to a jury
`appears as a listed grievance in the Declaration of In-
`dependence, and would later be doubly bolted onto our
`Constitution by its Framers.
`
`From these beginnings, this Court has always ac-
`
`corded the jury trial right the respect it earned at the
`
`2 See John Adams, Argument and Report, in 2 Legal Papers
`
`of John Adams 172-210 (L. Kinvin Wroth & Hiller B. Zobel eds.,
`1965).
`
`3 Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 2-3
`(1966) (describing jury trial right’s “virtual enshrinement in our
`Federal Constitution”).
`
`
`
`
`
`7
`
`start of the nation. See, e.g., United States v. Gaudin,
`515 U.S. 506, 522-23 (1995) (Scalia, J.) (“The Constitu-
`tion gives a criminal defendant the right to have a jury
`determine, beyond a reasonable doubt, his guilt of
`every element of the crime with which he is charged.”);
`Bollenbach v. United States, 326 U.S. 607, 615 (1946)
`(Frankfurter, J.) (“In view of the place of importance
`that trial by jury has in our Bill of Rights, it is not to
`be supposed that Congress intended to substitute the
`belief of appellate judges in the guilt of an accused,
`however justifiably engendered by the dead record, for
`ascertainment of guilt by a jury under appropriate ju-
`dicial guidance, however cumbersome that process can
`be.”); Ex Parte Milligan, 71 U.S. 1, 123 (1866) (Davis,
`J.) (“This privilege is a vital principle, underlying the
`whole administration of criminal justice; it is not held
`by sufferance, and cannot be frittered away on any plea
`of state or political necessity.”).
`
`Indeed, the continuing unanimity in this Court’s
`
`endorsement of the prohibition on directed verdicts in
`criminal cases is testament to the faith that this Court
`has kept with this original promise of the Constitution.
`Neder, 527 U.S. at 17 n.2 (Rehnquist, C.J.); id. at 33
`(Scalia, J., concurring in part and dissenting in part).
`United Bhd. of Carpenters & Joiners of Am. v. United
`States, 330 U.S. 395, 408-09 (1947) (“For a judge may
`not direct a verdict of guilty no matter how conclusive
`the evidence.”). As this Court has declared:
`
`[The jury’s] overriding responsibility is to
`stand between the accused and a potentially
`arbitrary or abusive Government that is in
`
`
`
`
`
`8
`
`command of the criminal sanction. For this
`reason, a trial judge is prohibited from enter-
`ing a judgment of conviction or directing the
`jury to come forward with such a verdict, . . .
`regardless of how overwhelmingly the evi-
`dence may point in that direction. The trial
`judge is hereby barred from attempting to
`override or interfere with the jurors’ inde-
`pendent judgment in a manner contrary to
`the interests of the accused.
`
`United States v. Martin Linen Supply Co., 430 U.S. 564,
`572-73 (1977) (Brennan, J.) (citations omitted).
`
`The constraint that the prohibition on directed
`
`verdicts places upon appellate review was recognized
`by this Court in Sullivan v. Louisiana, 508 U.S. 275,
`279 (1993) (“The Sixth Amendment requires more than
`appellate speculation about a hypothetical jury’s ac-
`tion, or else directed verdicts for the State would be
`sustainable on appeal; it requires an actual jury find-
`ing of guilt.”). By comparison, this Court first recog-
`nized the possibility of harmless constitutional error in
`Chapman v. California, 386 U.S. 18 (1967), but only for
`errors that “are so unimportant and insignificant that
`they may, consistent with the Federal Constitution, be
`deemed harmless, not requiring the automatic reversal
`of the conviction.” Id. at 22.4 Even as to such errors,
`
`4 The doctrine of harmless error appellate review for non-
`
`constitutional error is often identified as originating with this
`Court’s opinion in Kotteakos v. United States, 328 U.S. 750, 764
`(1946). See Brecht v. Abrahamson, 507 U.S. 619, 623, 637 (1993)
`(distinguishing more stringent Chapman harmless error review
`from Kotteakos standard).
`
`
`
`
`
`9
`
`however, it is the burden of the Government to prove
`that they are harmless beyond a reasonable doubt. Id.
`at 24.
`
`But this Court has never characterized the jury
`
`trial right as unimportant or insignificant. To the con-
`trary, this Court has previously explained:
`
` The guarantees of jury trial in the Fed-
`
`eral and State constitutions reflect a profound
`judgment about the way in which law should
`be enforced and justice administered. A right
`to jury trial is granted to criminal defendants
`in order to prevent oppression by the Govern-
`ment. Those who wrote our constitutions
`knew from history and experience that it was
`necessary to protect against unfounded crim-
`inal charges brought to eliminate enemies
`and against judges too responsive to the voice
`of higher authority.
`
`Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968)
`(White, J.).
`
`The Neder opinion marks no departure from this
`
`unbroken chain of constitutional precedent. In Neder,
`this Court confronted an individual defendant’s claim
`of instructional error in a tax prosecution for failure to
`report $5 million in income. The defendant had con-
`ceded below and again in this Court that this amount
`was material income as to him, thereby satisfying the
`materiality element of the tax charge against him.
`Neder, 527 U.S. at 15 (“Petitioner underreported $5
`million on his tax returns, and did not contest the ele-
`ment of materiality at trial. Petitioner does not suggest
`
`
`
`
`
`10
`
`that he would introduce any evidence bearing upon the
`issue of materiality if so allowed.”). As here, the trial
`court in Neder had followed erroneous but then-appli-
`cable circuit law to deny a jury charge on an essential
`element. During subsequent oral argument in this
`Court, defense counsel essentially conceded that the
`defendant would not controvert materiality upon re-
`mand. See Transcript of Oral Argument in Neder
`(available at https://www.oyez.org/cases/1998/97-1985).
`
`This Court emphasized that “Neder did not argue
`
`to the jury – and does not argue here – that his false
`statements of income could be found immaterial.”
`Neder, 527 U.S. at 16. Under these unique circum-
`stances – when an element was essentially consist-
`ently stipulated by the defense at trial, again on
`appeal, and again for purposes of any remand – this
`Court held that it was harmless error for the trial court
`not to instruct on this element.
`
`The Neder opinion concluded that, in this “narrow
`
`class of cases,” 527 U.S. at 17 n.2, the error was harm-
`less under Chapman, if “beyond a reasonable doubt . . .
`the omitted element was uncontested and supported
`by overwhelming evidence, such that the jury verdict
`would have been the same absent the error . . . .” Id. at
`17 (emphasis added). The context in which this Court
`used the term “uncontested” was indeed narrow – the
`defense had essentially stipulated that it had not,
`could not, and would not contest the missing essential
`element.
`
`
`
`
`
`11
`
` Mindful of the importance of the jury trial right,
`the Neder majority opinion held:
`
`In a case such as this one, where a defendant
`did not, and apparently could not, bring forth
`facts contesting the omitted element, answer-
`ing the question of whether the jury verdict
`would have been the same absent the error,
`does not fundamentally undermine the pur-
`poses of the jury trial guarantee.
`
`Neder, 527 U.S. at 19 (emphasis added). The lack of a
`defense contest to the omitted element was pivotal – it
`made undertaking harmless error analysis consistent
`with the fundamental purposes of the jury trial guar-
`antee because the defendant did not, and would not,
`contest the element before the jury.
`
`Even in this rare context, this Court nonetheless
`
`went on to require that a reviewing appellate court
`conduct a searching examination of the record under
`the reasonable doubt standard to determine whether
`the “omitted element was uncontested and supported
`by overwhelming evidence, such that the jury verdict
`would have been the same absent the error . . . .”
`Neder, 527 U.S. at 17 (emphasis added). In so holding,
`the Neder majority reached common ground with the
`remaining Members of the Court on the shared princi-
`ple that a directed criminal verdict is beyond the con-
`stitutional power of federal judges.
`
`The Neder standard thus places threshold signifi-
`
`cance on the lack of controversy by the defendant
`
`
`
`
`
`12
`
`regarding the element omitted from the jury instruc-
`tions. Only in the absence of such a controversy does
`the Neder harmless-error test invite appellate courts
`to go the next step and assess whether the evidence of
`record is, actually, both uncontroverted and over-
`whelming. In substance, this Court ruled that even if
`the defense failed to contest the omitted element, an
`appellate court must still assure itself that overwhelm-
`ing evidence establishes the element beyond a reason-
`able doubt.5 As the Solicitor General argued in its brief
`to the Court in Neder, “an [instructional] error should
`be found harmless when an appellate court can deter-
`mine that the defendant did not dispute the element
`at trial, and, in light of the proof, the element was in-
`disputable.” Brief for the United States in Neder v.
`United States, No. 97-1985, 1999 WL 6660, at *6-7 (em-
`phasis added); accord id. at *25 (“[A]n appellate court
`can find an instructional omission harmless when it
`can conclude beyond a reasonable doubt that the ele-
`ment was uncontroverted and established by over-
`whelming proof, such that the jury verdict would have
`been the same absent the error.”) (emphasis added).
`
`
`
`
`
`
`5 Compare Burks v. United States, 437 U.S. 1 (1978) (double
`jeopardy bars retrial if appellate court determines evidence insuf-
`ficient, regardless of remedy sought by defendant).
`
`
`
`
`
`13
`
`B. The Circuits are Split Over Whether
`Overwhelming Evidence Can Render
`Harmless the Omission of a Contested
`Element, and the Issue is a Recurring One
`Two judges in the First Circuit have penned
`
`lengthy opinions on whether Neder’s language requir-
`ing that the omitted element be “uncontested and sup-
`ported by overwhelming evidence,” Neder, 527 U.S. at
`17 (emphasis added), imposes disjunctive or cumula-
`tive requirements. In United States v. Pizarro, 772 F.3d
`284 (1st Cir. 2014), Judge Lipez interpreted Neder to
`require a two-part inquiry, in which an instructional
`error is deemed harmless only if the omitted element
`is: (1) “uncontested” by the defendant at trial, and (2)
`supported by “overwhelming evidence.” Thus, where
`the trial court refuses to instruct the jury on an ele-
`ment of the offense, it is not sufficient on appeal for the
`Government to identify overwhelming evidence in sup-
`port of the omitted element: “Neder . . . requires that
`an omitted element be uncontested in order to be found
`harmless.” Id. at 304 (Lipez, J., concurring).6
`
`Neder prescribed harmless-error review for
`“the narrow class of cases” where there was “a
`failure to charge on an uncontested element of
`
`
`6 Judge Lipez cited a number of First Circuit cases that re-
`
`versed convictions for instructional error where the omitted ele-
`ment was contested by the defendant. See, e.g., United States v.
`Zhen Zhou Wu, 711 F.3d 1, 20 (1st Cir. 2013); United States v.
`Bailey, 270 F.3d 83, 89 (1st Cir. 2001); United States v. Prigmore,
`243 F.3d 1, 22 (1st Cir. 2001).
`
`
`
`
`
`14
`
`the offense.” Neder, 527 U.S. at 17 n.2 (empha-
`ses added).
`
`Hence, the Court evidently used the require-
`ment that the omitted element be “uncon-
`tested” to justify departing from its repeated
`statements that harmless error review would
`be unavailable where a court had directed a
`jury verdict of guilty in a criminal case. The
`Court emphasized that it was not taking an
`“ ‘in for a penny, in for a pound’ approach” –
`i.e., by permitting harmless error review
`where the omitted element was uncontested,
`the Court was carving out an extremely lim-
`ited exception to its bar against reviewing di-
`rected guilty verdicts for harmlessness.
`
`
`
`
`
`. . . .
`
`Thus, even where a reviewing court concludes
`beyond a reasonable doubt that an omitted el-
`ement is supported by overwhelming evi-
`dence, I believe that the omission of that
`element is not harmless unless the court also
`concludes beyond a reasonable doubt that the
`element was “uncontested.”
`
`Id. at 309-10.
`
`Judge Lipez observed that “Neder did not explic-
`
`itly elaborate on what would have been sufficient to
`‘contest’ the omitted element.” Id. at 310. Because the
`Court “focused on the fact that Neder ‘did not argue’ ”
`at any stage of the proceedings that a rational jury
`could have found in his favor on the element in
`question (i.e., materiality), Judge Lipez “construed
`
`
`
`
`
`15
`
`‘uncontested’ to mean that the defendant did not argue
`that a contrary finding on the omitted element was
`possible.” Id. at 311 (quoting Neder, 527 U.S. at 16).
`
`Judge Lipez’s concurring opinion cataloged the
`
`federal cases from the First, Second, Fourth, Ninth,
`and Eleventh Circuits reflecting what he describes as
`“The Debate over ‘Uncontested.’ ” Id. at 304-07. In his
`view, a “significant inconsistency” has developed “in
`the way courts have reviewed for harmlessness the
`failure to instruct on an element of a crime,” making
`this issue ripe for “the Supreme Court to clarify the
`line between an unconstitutional, directed guilty ver-
`dict and a harmless failure to instruct on an element.”
`Id. at 303.
`
`In response to Judge Lipez’s concurrence, Judge
`
`Torruella penned a concurrence of his own, appending
`“a non-exhaustive list of thirty relevant cases – from
`the Supreme Court, First Circuit, and other circuit
`courts of appeal – that discuss the constitutional
`harmless-error test.” Id. at 312-30 (Torruella, J., con-
`curring). Contrary to the position taken by Judge Li-
`pez, Judge Torruella opined that
`
`nothing in Neder supports, much less compels,
`a conclusion that the Supreme Court intended
`to supplant the standard Chapman harmless-
`error test with a new, mandatory, exclusive,
`two-pronged test (in which an omitted ele-
`ment must be both “uncontested” and “sup-
`ported by overwhelming evidence”) for cases
`in which the jury instructions erroneously
`omitted an element of the offense.
`
`
`
`
`
`16
`
`Id. at 318. To Judge Torruella’s view, “such an interpre-
`tation is exceedingly strained and finds scant support
`in Neder itself, not to mention the numerous cases cit-
`ing Neder over the past fifteen years. To the extent that
`there is inconsistency in the wake of Neder, [Judge Li-
`pez’s] concurrence adds to the confusion by presenting
`the issue as a much closer question than it is.” Id. at
`313.
`
`Jurists from other circuits have likewise written
`
`opinions expressing concern, indeed confusion, over
`the proper application of the harmless-error analysis.
`See, e.g., Monsanto v. United States, 348 F.3d 345, 350-
`51 (2d Cir. 2003) (“There is some tension between the
`harmless-error analysis in Neder and our articulation
`of it,” which “has been noted by at least one other cir-
`cuit court.”) (citing United States v. Brown, 202 F.3d
`691, 701 n.19 (4th Cir. 2000)). And the number of cases
`in which appellate judges have been forced to apply the
`harmless-error test to instructional error is significant:
`this year alone, the courts of appeals have confronted
`more than a dozen cases in which they have applied
`Neder to determine whether flawed jury instructions
`were harmless. E.g., United States v. Nosal, ___ F.3d
`___, 2016 WL 7190670 (9th Cir. Dec. 8, 2016); United
`States v. Elonis, 841 F.3d 589 (3d Cir. 2016); United
`States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016);
`United States v. Wynn, 827 F.3d 778 (8th Cir. 2016);
`United States v. Choudhry, 649 F. App’x 60, 2016 WL
`2942532 (2d Cir. 2016); United States v. Stanford, 823
`F.3d 814 (5th Cir. 2016); United States v. Ford, 821 F.3d
`63 (1st Cir. 2016); United States v. Maslenjak, 821 F.3d
`
`
`
`
`
`17
`
`675 (6th Cir. 201